a recent planning meeting of the Board of Governors ("BOG") of the
State Bar, the leader of the meeting asked a provocative question:
"Would the State Bar be able to function without the BOG?" Good
question. It costs more than $1 million a year to cover the costs of
governance of the State Bar. While this expense is comparable to what
other similar organizations spend on governance (such as the
California Medial Board), I can't help but wonder if our members are
getting a good value for their money.
Why not just eliminate the BOG and save our
members some of this cost?
The heart of the State Bar operation is the
admission and discipline system. More than 80 percent of the State
Bar's budget is devoted to this system. But if one were to take the
meetings of the BOG over the last three years and count the words that
are devoted to the issue of the admissions and discipline system, less
than 10 percent of the words would be devoted to this key function of
the State Bar.
With respect to the admission system, most of the
governance, such as it is, is done by the Committee of Bar Examiners (CBE).
The BOG gets an occasional report from the CBE, but that is it. With
respect to the discipline system, whenever the BOG has wandered into
some discussion of the discipline system, it has been characterized as
engaging in an attempt to micromanage and has scooted away from any
real examination of the discipline system.
So, what then does the BOG concern itself with?
Historically, most BOG time has been devoted to listening to staff
reports about operations and passing resolutions endorsing obscure
The bulk of the rest of the BOG's time has been
devoted to issues raised by the Conference of Delegates, the sections
and the occasional issue raised by a board committee. But, while the
rule changes are important and the conference and other sub-units of
the bar do raise important issues, the BOG's devotion of time to
these issues has precluded our engaging in the policy role we can and
should be pursuing.
What is wrong with this picture? What is wrong is
that the BOG is missing the opportunity to do what it can do best.
What can the BOG do best? The BOG functions best when it serves our
members by providing leadership concerning the overall policy of the
As elected members of the profession and
appointed members representing the public, the BOG is best suited to
point the State Bar in the right direction, leaving the staff to
attend to the day-to-day administration of the bar.
It is not that leaders of the BOG haven't tried
to change things. Past presidents Tom Stolpman and Andy Guilford both
pressed the BOG to adopt a "policy focused" model of governance.
In his final report, the Special Master appointed by the Supreme
Court, Justice Elwood Lui, urged the BOG to lift itself above the
minutia and focus on policy.
Even Chief Justice Ronald George has directly
urged the BOG to move towards a policy governance model. Through the
Judicial Council, the chief justice provided funds for the BOG to hire
a consultant to help us make this transition. Some members of the
current board, especially David Roth, have been trying to drive the
board towards a policy governance structure.
In the face of the obvious weaknesses of the
current governance model and the opportunity presented by adopting a
policy focus, why has not the BOG shifted towards policy governance? Well, it is not that it hasn't tried. It has.
This year, for example, the BOG adopted a plan
for its meetings that allotted time from each meeting to focus on a
given policy issue, such as the need to provide access to justice,
MCLE, MDP, MJP, etc. Now, at best, this effort has been partially
effective. Why then doesn't the BOG wholeheartedly embrace a policy
Having watched the BOG struggle with this issue
for four years, I now see some of the reasons why the BOG has not made
such a shift. First, for two-plus years, the BOG was dead in the water
because of the veto of our dues bill. For over two years, the BOG had
to focus exclusively on the problems raised by that veto.
Second, a number of members of the BOG are
concerned that if the BOG adopted a full- on policy governance model,
the BOG would find itself endlessly debating "mission statements"
and similar time-wasting efforts. I couldn't agree more that this is
a legitimate concern.
Third, the elected attorney BOG members are all
well aware that they have only one three-year term within which to
make a contribution to the bar. Each brings to the BOG some goal that
they want to pursue - it may be that they want to steer the State
Bar towards more vigilant efforts to eliminate the unauthorized
practice of the law or to increase diversity in the attorney
population or some other well-intended goal.
BOG members are concerned that if the BOG wanders
off in pursuit of policy governance, they will not be able to pursue
the policy initiatives they want to pursue. (I have myself in mind
when I make this observation. I have been as guilty as anyone of this
I also agree that this is a legitimate concern,
but I believe that we can pursue a policy governance model for the BOG
without giving up our ability to undertake initiatives.
The answer is that, to some extent, the BOG needs
to make a leap of faith. The BOG members are well aware of the flaws
in the current structure and are unanimously in favor of moving
towards a model of policy governance.
But, when we discuss the issue, we bog down
(sorry, I couldn't resist) in the details about how to accomplish
our shared goal.
The time has come for us to stop debating the
details and just do it. We need to commit ourselves to a full-fledged
effort to undertake a policy governance model. We owe this effort to
ourselves, the staff and our members.